United States District Court, S.D. New York
OPINION AND ORDER
Edgardo Ramos, U.S.D.J.
Perez (“Perez” or “Defendant”) has
been charged with violating Sections 1326(a) and (b)(2) of
Title 8 of the United States Code, prohibiting the reentry
into the United States of previously removed aliens.
See Doc. 9 (Information). Perez waived indictment on
February 5, 2018. Doc. 10. Perez now moves to dismiss the
Information against him. Doc. 18. For the following reasons,
the motion is DENIED.
was born in the Dominican Republic. See Declaration
of B. Alan Seidler in Support of Defendant's Motion to
Dismiss (“Seidler Decl.”) (Doc. 19) ¶ 1;
Compl. (Doc. 1) ¶ 3a. Perez was admitted to the United
States as a lawful permanent resident in 1988. Seidler Decl.
¶ 1. In 2007, Perez was convicted of attempted criminal
sale of a controlled substance in the third degree. Compl.
¶ 3b. In 2009, he was convicted of attempted criminal
possession of a controlled substance in the fourth degree.
Id. ¶ 3c.
November 22, 2010, an Immigration Judge issued an Order of
Removal for Perez. Seidler Decl. ¶ 2. The Order of
Removal was upheld by the Board of Immigration Appeals
(“BIA”). Id. According to Perez, he was
not informed “by the Immigration Courts, or by any
Judge thereof that [he] was prohibited from entering,
attempting to enter, or being in the United States for any
term of years after his removal.” See Seidler
Decl. ¶ 2. According to the Government, Perez was given
this warning by an immigration official, and he acknowledged
having received the warning by signing a copy of Form I-294
“Warning to Alien Ordered Removed or Deported.”
See Memorandum of Law in Opposition to
Defendant's Motion to Dismiss (“Gov't
Mem.”) (Doc. 23), at 2. Perez also placed his
fingerprint next to his signature, above which there was an
additional warning regarding reentry. Id. Perez was
removed to the Dominican Republic on January 24, 2012. Compl.
22, 2017, Perez was found within the United States when he
was arrested in Manhattan, New York for criminal sale of
marijuana in the fourth degree. Id. ¶ 4. The
Information charged Perez with one count of illegal reentry,
and notified him that he was alleged to have violated
Sections 1326(a) and (b) of Title 8 of the United States
From at least on or about July 22, 2017, in the Southern
District of New York and elsewhere, Julio Perez, the
defendant, being an alien, unlawfully did enter, and was
found in, the United States, after having been removed from
the United States subsequent to a conviction for the
commission of an aggravated felony, without having obtained
the express consent of the Attorney General of the United
States or his successor, the Secretary for the Department of
Homeland Security, to reapply for admission.
See Doc. 9.
argues that the information against him should be dismissed
because it “fails to charge him with knowingly, or
intentionally reentering the United States.”
See Memorandum of Law in Support of Defendant's
Motion to Dismiss (“Def.'s Mem.”) (Doc. 20),
points to several criminal statutes for which courts have
presumed a specific intent requirement as to every element of
the crime. Id. at 2-3. For example, in United
States v. Games-Perez, the Tenth Circuit determined that
the mens rea requirement for 18 U.S.C. §
922(g)(1), the statute prohibiting felons from possessing
firearms, is that a defendant must know she is in possession
of a firearm; the Government need not also prove that a
defendant know she had previously been convicted of a felony.
667 F.3d 1136, 1142 (10th Cir. 2012). Then-Judge Gorsuch
concurred in that case and reiterated Supreme Court precedent
that courts should “‘presum[e]' a mens
rea requirement attaches to ‘each of the statutory
elements that criminalize otherwise innocent
conduct.'” Id. at 1145 (Gorsuch, J.,
concurring) (quoting United States v. X-Citement Video,
Inc., 513 U.S. 64, 72 (1994)). In X-Citement
Video itself, the Supreme Court held that 18 U.S.C.
§ 2252, which prohibits a defendant from knowingly
transporting, shipping, receiving, distributing, or
reproducing a visual depiction of a minor engaging in sexual
explicit conduct, contained a scienter requirement as to the
minor's age. X-Citement Video, 513 U.S. at 78.
Perez argues that the concurrence in Games-Perez and
majority opinion in X-Citement Video require the
Court to dismiss the Information, because the Government does
not allege that he knowingly re-entered the United States.
Def's Mem. at 2-3.
true, of course, that the Government must prove “a
voluntary act of reentry or attempted reentry by the
defendant that is not expressly sanctioned by the Attorney
General.” United States v. Martus, 138 F.3d
95, 97 (2d Cir. 1998). However, the Second Circuit has
determined that “Section 1326 does not implicate the
concerns that led to the [Supreme] Court to engraft a
scienter requirement onto other, unrelated statutes”
and the Government need not prove a defendant's specific
intent to violate a removal order. United States v.
Torres-Echavarria, 129 F.3d 692, 697 (2d Cir. 1997)
(discussing X-Citement Video). In fact, this Circuit
has repeatedly held that “it is unnecessary to show
specific intent to prove a violation of [Section]
1326.” United States v. Acevedo, 229 F.3d 350,
358 (2d Cir. 2000); United States v. Rodriguez, 416
F.3d 123, 128 (2d Cir. 2005); United States v.
Champegnie, 925 F.2d 54, 55-56 (2d Cir. 1991).
the Information notified Perez that he was charged with
illegal reentry under Sections 1326(a) and (b) because he
“unlawfully did enter, and was found in, the United
States, after having been removed from the United States
subsequent to a conviction for the commission of an
aggravated felony, without having obtained the express
consent of the Attorney General . .." Doc. 9. The Court
finds that the Information was sufficient to notify Perez
that he was charged with a voluntary act of reentry. See
United States v. Alvarez, No. 09 Cr. 386 (DAB), 2009 WL
3459219, at *3 (S.D.N.Y. Oct. 27, 2009) (finding an
Indictment sufficient where it contained "the four
elements of illegal re-entry .. . that the Defendant was an
alien at the time of the alleged offense; that prior to the
alleged offense, the Defendant had been deported from the
United States; that the Defendant thereafter improperly
entered or was found in the United States; and that the
Defendant did not have the express permission of the Attorney
General to return .. . ."); United States v.
Black, No. 06 Cr. 1079 (DLC), 2007 WL 683996, at *4
(S.D.N.Y. Mar. 6, 2007) ("The Indictment sufficiently
notifies the defendant ...